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“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Following up on a temporary decision issued last month to suspend a lower court ruling protecting reproductive rights, Fifth Circuit Trump Judge Kyle Duncan wrote an April, 2020 decision that ordered the lower court to permanently vacate its ruling and authorized Texas to continue to ban abortions due to the coronavirus. Dissenting judge James Dennis strongly criticized Duncan’s opinion, pointing out that it was part of a ”recurring pattern” in the Fifth Circuit “in which a result follows not because of the law or facts, but because of the subject matter of this case” i.e. abortion. The case is In re Abbott.

As reported earlier in this blog, Texas Governor Greg Abbott issued a harsh order in March, banning and threatening jail time for providing any abortion during the COVID-19 pandemic that is not “medically necessary to preserve the life or health of the mother.” A federal district court issued a temporary restraining order against the ban, but Duncan provided the deciding vote to stay that order in late March while the court further considered the issue.

On April 7, Duncan wrote a 2-1 opinion permanently granting the “extraordinary” writ of mandamus requested by the Governor against the lower court and barring it from attempting to protect women’s reproductive rights that were clearly infringed by Abbott’s decree. Duncan wrote that the Governor was permitted to “curtail constitutional rights” as he did because, in Duncan’s view, the ban had “at least some ‘real or substantial relation’ to the public health crisis” and was “not ‘beyond all question , a plain, palpable invasion of rights secured’” by the Constitution.

Judge Dennis firmly dissented. He pointed out that Abbott’s order applies even where a physician determines that an abortion is needed to avoid “serious adverse medical consequences” and would not utilize crucial medical equipment or “deplete hospital capacity.” He noted that “none” of the other states that had tried to similarly ban abortion due to the pandemic had “been successful in the face of a constitutional challenge, either in the district courts or on appeal.” He explained that the facts warranted the same conclusion in this case. He concluded that:

In a time where panic and fear already consume our daily lives, the majority’s opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing and unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care.